Prosecutions of elder abuse cases decline under Brown

Enforcement drop comes despite steady budget increases

The office of Attorney General Jerry Brown has dismissed an
increasing number of criminal cases against defendants suspected of
elder abuse, while cutting back on surprise inspections to
investigate violence and neglect in nursing homes.

A California Watch review of elder abuse prosecutions found
Brown's office in sharp contrast with his predecessor, Bill
Lockyer, who made similar cases a top priority during his two
terms. In addition to dismissing abuse prosecutions already in
motion, Brown's office has filed fewer new cases per year than
Lockyer's office.

The review of data from the California Department of Justice
shows that the unit prosecuting elder abuse enjoyed steady budget
increases in recent years.

But despite this:

-- Civil and criminal elder abuse prosecutions have fallen about
one-third under Brown. Lockyer filed 162, 131 and 111 civil and
criminal cases during his three peak years of prosecuting such
cases. During the two full years that data are available for Brown,
his office filed 75 and 89 cases. The decline in filings comes as
prosecutors are increasingly changing course and dropping charges
against those accused of harming seniors.

-- The office has scaled back surprise nursing home inspections
in the Department of Justice's Operation Guardians program, from 92
probes in 2006 to 19 last year. These inspections have proven to be
an important tool in identifying elder abuse.

-- Brown's office has cut back on elder abuse training for the
state's ombudsmen, police and district attorneys. The office used
to hold four-day training summits every two years, but has not held
one for three years and has no immediate plans to provide such
training.

Brown, the Democratic nominee for governor, declined to comment
for this report. Top officials in his office say there has been no
conscious effort to diminish elder abuse cases under his
administration.

"Everybody here cares very much about treatment of elders," said
Mark Geiger, who heads the Bureau of Medi-Cal Fraud & Elder
Abuse within the attorney general's office. "I have never seen
anybody not do the right thing."

Instead, Brown's lieutenants say that past success in
prosecuting nursing homes may be deterring the kind of abuses they
saw in prior years. The office has seen a marked drop in reports of
physical abuse and significantly fewer referrals from local
ombudsmen, law enforcement and the public.

The office also has seen an uptick in financial fraud cases and
has applied more resources to prosecute health care providers who
scam Medi-Cal, California's medical insurance program for the
needy.

In addition to stepping up fraud efforts, Brown's office has
emphasized other priorities, delving into new arenas in
environmental law, consumer protection and DNA analysis.

But as the 65-and-older population skyrockets in California and
elsewhere, advocates for seniors and the elderly are troubled by
the reduction in elder abuse prosecutions.

"One of our concerns is that if these cases aren't prosecuted,
it resets the tolerance for abusive behavior," said Leslie
Morrison, an attorney and director of the investigations unit at
Disability Rights California. "The perpetrators are able to slip
through cracks and victimize other people."

Cases like Marlene Z. Robertson's illustrate the differences
from one Democratic administration to the next. Robertson was
prosecuted under Lockyer but saw the criminal case against her
dismissed under Brown.

Lockyer's office had accused Robertson of bribing a health
inspector in return for advance warning about inspections of
Huntington Healthcare Center in Los Angeles.

"I could not forget what I saw," the public health inspector,
Josefina Herrera, said in an interview. "It did not look like a
skilled nursing facility. It looked like a warehouse for
zombies."

Inspection reports before and after the arrest documented chaos
and filth at the home. Patients with uncontrolled psychiatric
conditions threw furniture and threatened to kill others. One
resident bloodied an 82-year-old woman's nose, state citation
records show. Pigeon droppings littered the dining room and rodent
feces polluted the pantry.

After her September 2005 inspection, Herrera told Robertson that
the facility would be facing additional scrutiny. Later, though,
one of Robertson's employees brought Herrera a Christmas card
containing five $100 bills, according to court records.

Herrera turned to an investigator for the attorney general's
office, who asked her to go undercover. Soon, Herrera was nervously
passing hours with Robertson, wearing a wire and making trips to
the bathroom to place hushed calls to investigators.

'Most disturbing'

Within months, Herrera collected about $7,000 in exchange for
"consulting" work for Robertson. Herrera's undercover work led
Lockyer's office to charge the nursing home owner with 12 counts of
bribery and conspiracy. Lockyer, who declined to comment for this
report, declared at the time that it was one of the "most
disturbing" cases he'd seen.

But earlier this year, after nearly five years of investigation
and prosecution, the Department of Justice dismissed all felony
counts against Robertson.

"All that work going down the drain," Herrera said.

Robertson did not return calls or respond to a letter seeking
comment, and her attorney declined to speak to California
Watch.

Alan Robison, a deputy attorney general who worked on part of
the Robertson case, said the case was dismissed after a pretrial
hearing opened new lines of attack for defense attorneys, who also
contended that prosecutors did not prove Robertson had "corrupt
intent" to bribe. Prosecutors were not convinced they could make
their case at trial.

Additionally, Brown's office reached a civil settlement that is
expected to drive quality improvements at Robertson's nursing
homes. Her business was fined $100,000, and state licensing
authorities had already forced her to sell Huntington Healthcare.
Robison also said that attorneys are overseeing a civil injunction
that allows for close monitoring of Robertson's remaining nursing
homes, Golden Cross Health Care in Pasadena and Cloverleaf
Healthcare Center in Hemet.

Yet, a conclusion to the Robertson case without criminal charges
outraged Patricia McGinnis, executive director of California
Advocates for Nursing Home Reform. "This is a slap on the wrist, to
say the least," she said. "Where is the justice for the residents
who were neglected and abused?"

Fighting fraud proves lucrative

A decade ago, when Lockyer began his first term as attorney
general, he swiftly added 20 attorneys and investigators to work on
elder abuse cases, doubling the size of the unit.

He launched a $6 million media campaign and supported
unprecedented cases accusing nursing home companies of crimes.

Robison, a supervising attorney with the Bureau of Medi-Cal
Fraud & Elder Abuse since 2000, prosecuted two of the state's
largest chains, Sun Healthcare Group and Pleasant Care, ultimately
driving the latter out of business.

The office is still examining nursing homes from top to bottom,
he said. But attorneys have not found sufficient facts to pursue
such sweeping cases under Brown.

"It's not for a lack of trying," Robison said, "and not because
someone in the administration was pouring water on it."

James Humes, Brown's second-in-command, said attorneys
throughout the agency defend seniors, from going after unscrupulous
contractors and backing up public health inspectors who cite
nursing homes.

"I feel really proud of the work we do in elder abuse,
throughout the office," he said.

The California Watch review focused on work performed by the
attorney general's Bureau of Medi-Cal Fraud & Elder Abuse,
which is headed by Geiger. He attributed the decline in elder abuse
prosecutions to the steep drop-off in incident reports from police
and local ombudsman offices, complaints that often get cases
rolling.

The shift also has come as Geiger invested more of the unit's
resources in its other mission: prosecuting those who defraud
Medi-Cal.

The unit's budget grew from $30.5 million in 2007 to $35.8
million this year, with three-quarters of the funding coming from
the federal government. Geiger used the additional money to press
cases against clinics, drug vendors and doctors accused of bilking
Medi-Cal.

The increased focus on fraud has paid off, bringing $220 million
back to taxpayers in 2009, Geiger said. Still, Brown's most
fruitful year in prosecuting fraud cases doesn't top the $260
million in fraud paybacks netted under Lockyer during his biggest
year, 2005-06.

Cases dismissed

When Brown's office dismissed the bribery charges against
Robertson earlier this year, she was one of a growing number of
elder-abuse defendants relieved of all charges. The office dropped
charges against 13 defendants in 2008, in cases it prosecuted alone
or in partnership with local or federal prosecutors.

That number nearly doubled to 25 dropped cases the next year and
rose to 33 during a reporting period that ended in March.

Prosecutors expect to drop charges against 35 people accused of
elder abuse next year, even though lawyers in the attorney
general's office only project to file 50 new criminal cases,
according to a report filed with federal funders.

Deputy attorneys general acknowledge that their pace has slowed
but say other factors have limited the pool of potential cases. The
elder abuse unit under Brown saw case referrals from local agencies
and elder-care ombudsmen drop from more than 2,300 in 2003 to 745
in 2009.

Humes said the decline reflects a drop in crime statewide.
Another top prosecutor said increased awareness of mandated
reporting laws might result in more abuse being resolved by local
authorities, who are the first to receive such reports.

Officials also attribute the decline in referrals to budget cuts
hitting all corners of the state, particularly the Department of
Aging elder care ombudsman program, which saw deep budget
shortfalls in recent years.

To some degree, though, the attorney general's office made
choices that cut off its access to case leads, records and
interviews show.

For three years, the office has not held formal statewide elder
abuse training, leaving some local advocates and law enforcers
ill-equipped to identify, investigate and draw attention to
problems, according to Morrison, of Disability Rights California.
And a drastic cutback in the Operation Guardians nursing home
inspections eliminated a fruitful source of cases.

During the Operation Guardians inspections, a nurse, doctor,
investigator and auditor arrived unannounced at a nursing home,
sometimes before 7 a.m. They would examine recent patient deaths
and wound care. They also would watch staff give meals and
medication to residents.

Dane Gillette, chief of the attorney general's criminal
division, said cutting annual inspections from 92 to 19 has focused
dwindling funds on real cases rather than potential ones.

Closed case gets second look

One case that California Watch inquired about set off a flurry
of activity in the attorney general's office.

According to public records, three certified nursing assistants
at Valley View Skilled Nursing Center in Ukiah took on a "gang
mentality." They targeted five patients, abusing them, harassing
them and leaving one in fear for his life.

The attorney general's elder care unit received reports of the
alleged abuse days after an official from the facility alerted
public health officials about the incidents in March 2007.

But the unit referred the case to local law enforcement, which
declined assistance from the attorney general's office and filed no
charges, said Robison, a supervising prosecutor.

When asked by California Watch in June about the attorney
general's handling of the matter, Robison requested an 80-page
police report. He quickly assigned an investigator and attorney to
reopen the case.

On Aug. 11 the office arrested William Esenbock, 26, in
Mendocino County on six misdemeanor counts of elder abuse.

Prosecutors allege that Esenbock walked a patient from the
shower sopping wet and naked, pinched a male patient's nipple and
took a photo of an elderly woman's bare torso and showed it to
co-workers.

Esenbock also is accused of startling a resident awake,
recording the man's reaction on his cell phone and showing that to
co-workers.

One 78-year-old resident repeatedly broke down crying as he
explained to public health inspectors that Esenbock had tried to
feed him his own feces. The man said he feared that the nursing
assistant might kill him, the citation report says.

Around the same time, another Valley View worker repeatedly
shoved a blind 87-year-old patient who was trying to get up to use
the bathroom, state license revocation records show. A third worker
gave a 56-year-old man cold showers and hit him on the head with a
soap bottle, records show.

After the allegations arose, Valley View fired the workers.
State officials stripped them of their nursing assistant
licenses.

Last month, the attorney general's office also arrested six
Valley View workers for coating seniors with ointment as a
prank.

A Valley View administrator did not return calls seeking
comment.

This article was edited by Robert Salladay and Mark Katches and
copy-edited by Nikki Werking.

California Watch is a project of the Center for Investigative
Reporting. Jewett can be reached at
cjewett@californiawatch.org.